Mediation – an alternative
to litigation in medical malpractice

‘… may we live in a world without lawyers
and court cases …’ (Confucius)

Interestingly, by the end of the communist era in China
there were only 10 000 lawyers serving the needs of that
entire nation. But that did not mean people were without
justice. Confucius said a lot of things, and his take on the
legal side of life was spot on. Adherence to Confucianism,
with the core values of ‘perfect virtue, middle ground and
authority admiration [respect]’, is still part of Chinese
culture today.1 Positioned in every
community were people whose task it was to resolve conflict as
it arose. Reportedly, there was one counsellor for every 100
souls throughout the country. While one can speculate as to
how these disputes were resolved, what is interesting is that
the community developed a system that essentially ensured
justice for all.

How is it that we have allowed ourselves to end up where
we are? The evolution of the justice system in the Western
world seems to have taken a very different path to that of the
Chinese. Our legal system has focused firmly on applying the
‘law’, and not necessarily on seeking justice. An SAMJ editorial last year2
outlined very clearly the dilemma currently facing doctors
over much of the world. Two publications in this issue, an
editorial by Howarth et al.3 and
an article by Roytowski et al.,4
further underline the magnitude of the problem. Through our
legal system, the cost of doctors protecting themselves from
possible legal action has reached breaking point, as evidenced
by the threat that obstetricians might abandon the practice of
obstetrics becoming an ever-increasing reality.

The problem does not affect doctors alone. For healthcare
institutions, in particular those managed by the state and
‘covered’ by taxpayers’ money, the position is just as dire. The
Gauteng government has recently settled claims in excess of R2
billion, with about as much still pending. That these funds were
destined for the health budget underscores the crisis in the
public sector as well.

So how did we get here? There are numerous cost drivers
that are taking healthcare beyond our reach. An easily
identifiable and prominent cost-driving factor can be
attributed to the law, or rather the implementation thereof.
Khan et al.5
have suggested, somewhat pointedly, that apart from the role
played by the changing expectations of the public, a growing
legal services industry plays an active role in the cost
escalation. Fear of litigation fuels cost-inefficient
defensive practice. The upward spiral of escalating legal fees
and costs is indicative of a ‘dispute’ resolution process that
we can no longer afford. This process has affected the very
nature of the healthcare we provide. The profession, once
characterised by the generosity of altruism, has, with the
passage of time and a multitude of events involving a few,
become transformed into a fearful and defensive band of
practitioners constantly watching their backs. A recent survey
of orthopaedic surgeons in the USA disclosed that 96% of
participants practised defensive medicine.6 It
is estimated that the cost of defensive orthopaedic practice
in the USA is around $2 billion per year, while Mello et al.7
reported this to have reached $45 billion in 2010. What was
once a dilemma is now a crisis.

Our legal structure is based on the ‘tort’ system, meaning that
in terms of the law of delict, if patients suffer as a result of
failure of a hospital or a doctor to provide reasonable care due
to negligence, compensation can be sought.8

In an editorial in the SA
Orthopaedic Journal,9 I
presented the arguments against litigation as the appropriate
oversight system, citing that it is expensive, that most of
the money spent accrues to the legal teams, and that it is
cumbersome and time consuming without necessarily reaching the
desired goal, which, as Confucius would have put it, should be
fairness in righting the wrong. In addition, litigation means
that the plaintiff will only succeed in the
event of negligent practice being proven against
the practitioner, but enjoys no compensation or benefit when
an inherent or unavoidable error has occurred. This is not the
case when alternative dispute resolution methods are employed.

The call for change is strong. But what are the
alternatives to the litigation system under which we operate?
Arguments for changes in the tort system are being heard
around the world, such as a shift of liability from physician
to enterprise, while momentum is gathering for the
introduction of health courts, for no-fault compensation, and
towards arbitration and mediation. There are two core factors
informing this shift. Firstly, there is an increasing
acknowledgement that not every complication or error is
‘avoidable’. We work in systems that are frequently beyond our
control and have boundaries that are not ideal. Innovations to
minimise the ‘human factor’ are being usefully introduced,
such as the ‘surgical safety checklist’. Introduced under the
auspices of the World Health Organization to reduce system
errors for patients undergoing surgery, this system of checks
and balances to eliminate errors ensures accurate
communication and interaction with all involved in the
management of patients.10 Secondly, a major
advantage of some of the alternative systems proposed to
replace litigation is that a great deal of the money spent on
the legal process will be directed at redressing the wrongs
where help is needed, and that ultimately this benefit accrues
to the healthcare system rather than disappearing down a legal
drain. The plaintiff is more likely to derive benefit without
falling foul of legal technicalities.

Sohn11
suggests that ideally whatever system operates should ensure
appropriate compensation for the medical injury and correctly
identify the error, and that knowledge gained from the adverse
effects should help to build systems that eliminate errors. This
is not always the case with litigation, especially disputes
settled on the courtroom steps.

The major problem is the disjuncture between the costs
associated with defensive practice, mounting a claim and the
defence thereof, and how much is directed to restitution of what
caused the problem in the first place. As in the USA, we have no
repository for medical malpractice claims, so determining the
actual amounts directed to the legal process is a difficult
task. For the USA, this is estimated to be in the order of 2.4%
of the total national healthcare expenditure.12 Only
about 30 - 45% of money involved in the settlement of a claim
finds its way to the claimant.13 Obviously healthcare would
be much better off if the money spent on the legal process was
channelled instead into the healthcare system itself.

It is this realisation that has led to the pursuit of
alternative dispute resolution (ADR) mechanisms. Arbitration and
mediation are two possibilities that may serve this purpose.

Of these two, mediation is perhaps the most effective. The
essence of mediation is that it involves the two parties
communicating through a facilitator. The complainant or
aggrieved party has an opportunity to define and address the
complaint to the respondent, while the respondent has an equal
chance to explain the events that led to it. A trained mediator
facilitates the process, guiding both parties to a point of
mutual agreement or acceptance.

The majority of complaints against healthcare workers or
institutions are issues that arise out of miscommunication. Such
issues are ideal for the mediation process. While most
complaints involving negligence or malpractice are also amenable
to mediation, in certain instances the nature of the injury or
offence is of such a nature that official censure will need to
be applied. Such penalty or censorship can only be effectively
instituted by the relevant governing body, namely the Health
Professions Council of South Africa, or the law courts, where a
full legal inquiry into such conduct needs to be undertaken. In
medical matters, as with commercial civil suits, only a minority
of cases truly require the full process of the law.

The estimated cost of mediation is an order of magnitude less
than litigation, both financially and in terms of time. This
financial cost saving will directly benefit the healthcare
system. Medical malpractice insurance will diminish
significantly, as the associated costs of litigation, namely the
court and ‘silk’ costs, will not apply. What is paid will to a
large extent cover the direct costs or costs of restitution that
may arise out of malpractice or negligence.

At present the USA, Canada and the UK have embraced mediation
for settling medical disputes, which are increasingly being
resolved in this fashion. The courts in Florida, USA, are duty
bound to first refer the complaint for mediation; if this fails,
litigation can proceed. In the 2013 Medical Malpractice Annual
Report13
the mechanisms by which claims were settled are reported as 31%
abandoned, 42% settled by parties, 15% court settled and 12%
settled by ADR. Interest in alternatives to litigation is
increasing: the SA government is showing great interest in ADR,
and legislation has been passed to ensure that court-annexed
mediation at magisterial level is in place by December 2014. For
additional information on mediation, see http://www.mediate.com

There is no doubt that we are in deep trouble. Our profession
cannot be expected to continue along this path for much longer.
With the assistance of a pinch of Confucianism, we have at our
disposal very positive solutions to address this medicolegal
crisis. The ball is in our court.

Johan Walters

Division
of Orthopaedic Surgery, Department of Surgery,
Faulty of Health Sciences, University of
Cape Town, South Africa